State v. Scott, 9372
| Decision Date | 01 March 1973 |
| Docket Number | No. 9372,9372 |
| Citation | 492 S.W.2d 168 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Henry John SCOTT, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Melvin E. Carnahan, Rolla, for defendant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
This is an appeal from an order denying Henry John Scott an evidentiary hearing on his application for a writ of error coram nobis.
Petitioner-appellant, to whom we shall refer hereafter as movant, on January 7, 1972, filed in the office of the Circuit Court of Phelps County a motion styled 'Application for Writ of Error Coram Nobis.' Accompanying this motion was a sworn statement of fact and a brief.
Movant, having been found guilty of the charge of burglary in the second degree, was assessed a sentence of five years under the Second Offender Act. At his preliminary hearing he was represented by Mr. Jay White, a member of the Phelps County Bar. On this appeal movant is represented by Mr. Melvin E. Carnahan, of the Phelps County Bar, as a court-appointed attorney.
Movant's motion is poorly drawn. It consists of conclusions, vague statements of fact, and various irrelevant citations of legal authorities in support of the motion. It may be noted that the motion was not prepared by Mr. White or his court-appointed counsel, Mr. Carnahan.
The record is not clear whether movant has complied with the sentence assessed against him. It does disclose he was sentenced on March 21, 1967, to a term of five years, after trial by jury under the Second Offender Act, and that his motion for a writ of error coram nobis was filed on January 7, 1972. Considering that at the time of this decision movant would have completely served the sentence assessed, we conclude that movant has now served the sentence assessed against him. In his statement he states, 'Writ of error coram nobis is available to establish that defendant was denied due process when convicted, although defendant had already served his sentence.' He also cites cases that hold coram nobis is a proper remedy to attack prior convictions where the sentence has been served. We shall consider his complaints based on the assumption he has served the sentence assessed against him.
On March 14, 1967, movant was convicted by a jury in the Circuit Court of Phelps County on the charge of burglary in the second degree. He was represented at that time by Jay White, an attorney of his own choosing. On March 17, 1967, a motion for a new trial was filed. On March 21, 1967, the motion for a new trial was denied, and on the same date movant was sentenced by the court to a term of five years confinement under the supervision of the State Department of Corrections.
On January 7, 1972, nearly five years later, appellant filed Application for Writ of Error Coram Nobis. The material parts of the movant's grounds for invalidating the judgment and sentence are as follows:
'Writ of Error Coram Nobis is available to establish that defendant was denied due process when convicted, although defendant had already served his sentence and was not entitled to relief under Rule 27.26.' He further complains that:
On January 17, 1972, the trial court made the following entry: 'Now on this day the Court takes up Application of Petitioner Henry J. Scott for Writ of Coram Nobis and after due consideration said Application be and hereby is denied.'
Movant has briefed only the following point: 'The trial court erred...
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